5th Circuit Upholds Testimony on Defective Door-Latch Design

The trial court did not abuse its discretion in admitting plaintiffs' engineering testimony on defective door-latch design in a truck-accident case, the Fifth Circuit ruled on Wednesday. As recited in the appellate opinion, the defendants' Daubert objections sound pretty weak: the expert had published no peer-reviewed work on Mack truck door latches; his testimony had been ruled inadmissible in a previous case; he relied on third-party testing rather than conducting the tests himself; and he was "not a door-latch specialist."

The $7.9 million jury verdict in plaintiffs' favor was nevertheless vacated, because the trial court erred in excluding evidence about seat belt use. See Hodges v. Mack Trucks, Inc., No. 04-41362 (5th Cir. Dec. 27, 2006) (Davis, Barksdale, & DeMoss, JJ.).

Ohio Supreme Court Rules on "Battered Woman Syndrome" Testimony

The Ohio Supreme Court ruled Thursday that expert testimony on "battered woman syndrome" may be offered in the prosecution’s case-in-chief to help a jury understand a victim’s reaction to abuse in relation to her credibility, so long as the expert does not diagnose the complainant as a battered woman or opine that the accused is a batterer. From the opinion:

An expert witness who diagnoses a victim as a battered woman essentially concludes that the defendant is a batterer. In a case where the underlying charges involve domestic violence, such a conclusion by an expert witness is prejudicial to the defendant and usurps the jury’s role as finder-of-fact. A diagnosis can prejudice a defendant further because the expert is presenting a conclusion regarding the victim’s credibility, which again is a conclusion to be made by the jury. In cases where domestic violence is not the underlying charge, but battered-woman-syndrome testimony is offered to explain the conflicting statements or activities of a witness, a defendant can again be prejudiced by being labeled as a batterer. Thus, courts must carefully balance the admission of expert testimony on battered woman syndrome under Evid. R. 403.

An acceptable balance is best achieved through a tailoring of the expert’s testimony. Limitations placed upon the expert’s testimony -- “the expert cannot opine that complainant was a battered woman, may not testify that defendant was a batterer or that he is guilty of the crime, and cannot comment on whether complainant was being truthful” -- dispel concerns about unfair prejudice. [People v. Christel, 449 Mich. 578, 591, 537 N.W.2d 194 (1995).] The rule in most jurisdictions is that general testimony regarding battered woman syndrome may aid a jury in evaluating evidence, and that if the expert expresses no opinion as to whether the victim suffers from battered woman syndrome or does not opine on which of her conflicting statements is more credible, such testimony does not interfere with or impinge upon the jury's role in determining the credibility of witnesses. [State v. Townsend, 186 N.J. 473, 496-498, 897 A.2d 316 (2006).] “[T]he prosecutorial introduction of testimony on the battered woman syndrome must be in accordance with the applicable Ohio Rules of Evidence. The best way to approach this is by utilizing the limited format advocated by the courts in [State v. Ciskie, 110 Wash. 2d 263, 751 P.2d 1165 (1988)] and [Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991)]. Under this approach, experts who are called to testify in domestic violence prosecutions must limit their testimony to the general characteristics of a victim suffering from the battered woman syndrome. The expert may also answer hypothetical questions regarding specific abnormal behaviors exhibited by women suffering from the syndrome, but should never offer an opinion relative to the alleged victim in the case.” [Hawes, Removing the Roadblocks to Successful Domestic Violence Prosecutions: Prosecutorial Use of Expert Testimony on the Battered Woman Syndrome in Ohio, 53 Clev. St. L. Rev. 133, 158 (2005).]

See State v. Haines, 2006-Ohio-6711 (Dec. 28, 2006).

9th Circuit Reverses Exclusion of Medical Testimony in Support of Entrapment Defense

Yesterday, the Ninth Circuit published an opinion reversing the trial court's exclusion of medical testimony in a drug conspiracy trial. The defendant relied on an entrapment defense, proffering two experts to opine that he suffered from brain damage rendering him especially susceptible to the entrappers' inducements. The district court excluded the testimony as unreliable and prejudicial. The Court of Appeals reversed and remanded for a new trial. The admissibility of medical expert testimony, the appellate panel said, should be determined not by reference to a rigid standard of conclusive certainty, but rather according to whether "physicians would accept it as useful and reliable." As for the district court's finding that the testimony would confuse the issues, the panel responded that "predisposition was the issue." See United States v. Sandoval-Mendoza, No. 04-10118 (9th Cir. Dec. 27, 2006) (Goodwin, O'Scannlain, & Kleinfeld, JJ.).

1st Circuit Publishes Opinion Upholding Fingerprint Testimony

On Friday, the First Circuit issued a published opinion upholding the admission of the prosecution's fingerprint identification testimony in a case involving a fraudulent passport application. The district court did not abuse its discretion in rejecting the defendant's challenge to the expert's qualifications, because the expert's substantial experience was enough to satisfy Rule 702; he was not required, in addition, to be conversant with the underlying statistical studies purporting to validate fingerprint identification techniques.

On appeal, the defendant also objected to the expert's allegedly unreliable application of standard fingerprint identification methodology. Not having been raised at trial, the defendant's reliability objections were reviewed under a plain error standard, and were likewise rejected. The expert testified that the faxed copy of the defendant's prints was clear enough to permit a comparison. Although he pointed to only five matching characteristics on direct (rather than the minimum of eight he said were required to support an identification), those five were offered for illustrative purposes only and did not represent an exhaustive list. See United States v. Vargas, No. 05-2826 (1st Cir. Dec. 22, 2006) (Torruella, Lynch, & Lipez, JJ.).

The Manufacture of Doubt

An Australian man is accused of infecting his sexual partners with the HIV virus.

In his defense, he has called a medical engineer from a Perth hospital to testify that HIV doesn't exist.

No DNA = No Rape? Not So, Says Texas High Court

Reversing a lower appellate court's decision, the Texas Court of Criminal Appeals has held that a trial court legitimately excluded a nurse's expert testimony in a sexual assault case. The nurse opined that because there was no DNA or other physical evidence linking the defendant to an alleged rape, it was fair to conclude that no sexual assault occurred. See Vela v. State, No. PD-1388-04 (Tex. Ct. Crim. App. Dec. 13, 2006).

8th Circuit Reverses Exclusion of Fire Expert's Testimony

The Eighth Circuit has reversed the trial court's exclusion of testimony from an expert who opined that a motorized wheelchair scooter was the probable cause of a fire. See Hickerson v. The Scooter Store, No. 06-1647 (8th Cir. Dec. 13, 2006) (Arnold, Bye, & Melloy, JJ.).

5th Circuit Upholds Admission of Testimony on Modus Operandi of Sexual Predators

The Fifth Circuit has published an opinion upholding the trial court's admission of expert testimony on the "grooming" process and other common features of pedophile behavior. See United States v. Hitt, No. 05-30835 (5th Cir. Dec. 13, 2006) (Higginbotham, Dennis, & Clement, JJ.).

Trial Court Erred in Countenancing Expert's Novel and Untested Methodology, 6th Circuit Says

In a case involving claims that one model train distributor misappropriated the designs of another, the Sixth Circuit has overturned a $40 million jury verdict, holding that the trial court erred in admitting testimony from an engineering expert whose novel methodology was developed for litigation. "[T]here is no evidence," says the appellate opinion, "that his methodology had ever been tested, subjected to peer review, possessed a known or potential rate of error, or enjoyed general acceptance." In addition, the panel held that under Fed. R. Evid. 703, the expert should not have been permitted to testify, on direct, to findings reached by another analyst. See Mike's Train House, Inc. v. Lionel, L.L.C., No. 05-1095 (6th Cir. Dec. 14, 2006) (Daughtrey, Cole, & Graham, JJ.).

Should Experts Be Allowed to Watch "Boston Legal"?

You might call it "role envy." It's a strange phenomenon, but there's no denying it exists. Very often, when lawyers and their experts get together, they seem to want to trade places. The lawyers want to be expert witnesses, and the expert witnesses want to be lawyers.

This can lead to trouble. From the Des Moines Register:

A Microsoft lawyer argued Tuesday that three expert witnesses should be barred from testifying in the Iowa class-action suit against Microsoft because plaintiffs’ lawyers have repeatedly failed to provide documents related to the witnesses’ testimony.

Polk County District Court Judge Scott Rosenberg ordered the lawyers to turn over the documents or he might decide to ban the witnesses.

The three witnesses are Janet Netz and Jeffrey Macki-Mason, a husband and wife team who operate Applied Economic Consulting, a litigation support business, and Roger Noll, a technology and economics professor at Stanford University.

The three are expected to be called to help jurors determine economic damages, which the plaintiffs’ lawyers say total as much as $330 million.

Microsoft had asked last summer for documents used by expert witnesses to arrive at the testimony they planned to give in the case.

Microsoft lawyer Steve Holley told the judge Tuesday afternoon that the plaintiffs’ lawyers had used contorted language and a “palpably ridiculous definition of the word review” to keep from producing the documents.

Holley claimed that lawyers at the Minneapolis firm of Zelle Hoffmann had split the word review into two syllables — re-view — to create their interpretation that Microsoft was only seeking documents that the witnesses had looked at twice.

James Reece, a partner at Zelle Hoffmann, which is co-counsel with Des Moines lawyer Roxanne Conlin for the plaintiffs, admitted to Holley that expert witness Netz had suggested the unusual interpretation. Reece had adopted it until a second court order on Nov. 28 made it clear that Microsoft wanted all witness documents.

Utter Hooey (Discovery Institute Edition)

Just when you thought maybe the nonsense was over . . .

Computer Expert Must Examine Product, Says Seventh Circuit

"To qualify as an expert on software, an expert should, at a minimum, examine the product and software upon which the expert bases his opinion," the Seventh Circuit held yesterday in Autotech Tech. Ltd. P'ship v. Automationdirect.com, No. 05-4544 (7th Cir. Dec. 11, 2006) (Easterbrook, Bauer, & Evans, JJ.). The case involved two businesses, Autotech and ADC, who entered into a joint venture to develop and market EZTouch computer screens. Without telling Autotech, ADC later joined forces with another manufacturer to market a competing product under the brand name C-More. In its action to enjoin ADC from selling the C-More product, Autotech's computer expert opined that the C-More touch screen was an EZTouch clone that ADC developed based on proprietary information from Autotech. His testimony was excluded because his only acquaintance with the C-More product came from his review of an advertisement created by ADC for the general public.

Our Own Little Roundup

Four tidbits from around the blogosophere:

(1) At TortsProf Blog, Prof. Childs relays a question from Derek Lowe at Corante. The gist of Lowe's question: If Big Pharma is so evil, what explains Pfizer's willingness to walk away from torcetrapib? The gist of ours: Did Pfizer figure out that it would be difficult to yell "junk science" in a potential hailstorm of litigation, given that clinical trials showed a reported 60% increase in deaths among patients taking torcetrapib and Lipitor, over patients taking Lipitor alone?

(2) At Overlawyered, under the impish caption "Bad Mom Hurts Kid, Ford Blamed to Tune of $31M," Ted Frank tells of a South Carolina case where a mother failed to see to it that her 12-year-old son's seat belt was fastened. She also took her eyes off the road to yell at the kids in the back seat when they grew unruly. Her son was thrown from the vehicle and suffered brain injury in the ensuing rollover. A South Carolina jury assigned only 45% of the responsibility to Frank's favored causal factor (bad motherhood), allotting 55% of the fault to Ford. Frank doesn't mention the family's contention, disputed by Ford, that the seatbelts were inaccessible. Frank does say, however, that it's "unclear" how injured the son is. We haven't reviewed the expert testimony on that subject. According to the news story to which Frank links, the boy "suffered head injuries so severe that he spent the next three months at Medical University Hospital and a rehabilitation facility in Greenville." The boy's father says the boy now can't remember what he had for breakfast.

(3) At Science Evidence, Cliff Hutchinson faults the New York Times for publishing an op-ed piece by Robert N. Proctor, a history of science professor at Stanford who has also served as an expert witness in tobacco litigation. Proctor's piece notes that polonium 210 -- the radioactive substance recently used to poison former KGB agent Alexander V. Litvinenko -- is also found in cigarettes. Hutchinson says Proctor and the Times are foisting a "scare story" on Times readers. "[T]he quantity of any radioactive substance in a cigarette," says Hutchinson, "is so minute that it threatens no one." Hutchinson cites a calculation, performed by an Australian lab technician who doubles as a blogger, estimating that you'd need to smoke 5.4 billion cigarettes to get a lethal polonium dose. That may be true, if the form of lethality under consideration is radiation poisoning, which is caused only by very large radiation exposures. But health physicists say the radioactive properties of polonium 210 also make it a carcinogen -- at far lower doses, within the range that smokers routinely receive.

Update: We now see that Ted Frank and Walter Olson have both jumped on the same NYT piece, over at Overlawyered. No mention there, either, of the dose differential for radiation poisoning and carcinogenicity. Nor is that issue discussed in the "blogger refutations" they cite. All these sources talk about the problem as though all risks from all types of radiation through all exposure pathways were (a) essentially identical and (b) capable of uncontroversial expression, at a very high level of confidence and individual precision, through a common numerical metric.

(4) Peter Tillers has posted about a murder case where handwritten rap lyrics bragging about a killing were found in the suspect's possession at the time of his arrest. The defendant's lawyers have designated a "rap expert" who proposes to opine that "rap music lyrics often describe violent and sexual acts, and other antisocial behavior, that are not necessarily rooted in actual events." Tillers is interested in the normative and epistemic validity of the "group-to-individual" inference that such testimony would invite. But we also wonder whether the proposed testimony is helpful to the trier of fact, who may already know that the narratives sold to the public by the entertainment industry are commonly fictional.

Paring Down to Essentials

Some have feared that permitting the citation of unpublished opinions will create an undue burden on judges, by requiring them to defend their reasoning at greater length. But sometimes, prolixity is unnecessary, if you cut to the chase. Take the opinion in Jones v. Parr, No. 2006-1861 (La. Oct. 27, 2006), which we reproduce in its entirety below:

Granted. The trial court erred in excluding the testimony of Dr. Turkewitz merely because he practices in a different speciality than defendants. See McLean v. Hunter, 495 So.2d 1298 (La. 1986). Accordingly, the judgment of the trial court is vacated and the case remanded to the trial court for a hearing to determine whether Dr. Turkewitz has the requisite knowledge, skill, experience, training, or education to testify as an expert under La. Code Evid. art. 702, and whether his methodology is scientifically reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

That's 95 words, counting citations, in which we are told everything we really need to know, to understand the decision.

On the "Business Record Exception to Daubert"

On Friday, the Nebraska Supreme Court held, in a criminal case, that cell phone call records and location data are admissible without regard to Daubert, under the business record exception to the hearsay rule. See State v. Robinson, 272 Neb. 582, 608-20 (2006).

There will be no quarrel here with the outcome in Robinson. Most would probably agree that phone company records of calls made and received should be admissible. Cell phone location data may be more controversial, but we recognize the possibility that a showing of their trustworthiness and reliability could perhaps be made. Indeed, foundation testimony offered by the prosecution in Robinson arguably made it.

Our issue is solely with the Robinson court's reasoning and analysis. Don't get us wrong. We're as admissibility-friendly as the next person. But the law should be coherent, and we're not sure the Robinson opinion promotes that goal.

The Robinson court's ruling starts from the premise that "defendant’s Daubert objection was made, not to expert opinion testimony, but to business records evidencing historical facts." Because the records did not constitute "opinion testimony," the court said, they were "not subject to inquiry pursuant to Daubert." Their trustworthiness might permissibly have been questioned under Neb. Evid. R. 803(5) (the Nebraska equivalent of the hearsay exception for business records in Fed. R. Evid. 803(6)). But the defendant failed to make the requisite showing of untrustworthiness at trial.

It may be doubted, first of all, that the location data, in particular, recited no "opinion" reliant on specialized knowledge. The data reflected a conclusion about a cell phone's location (or at least about the location of towers receiving the cell phone's signal) that was not drawn from anyone's personal knowledge or observation. Rather, that conclusion was supportable, if at all, only through inferences from principles involving the behavior of radiomagnetic signals and phone company equipment. The fact that a conclusion is generated through computers and machines, or recorded in the form of a business record, does not render it any the less an "opinion." The computers and machines merely cloak the specialized assumptions they implement (or are supposed to implement), and relegate the human beings who chose to adopt those assumptions, and who designed the machines and programmed the computers, to anonymity.

Nor do opinions become non-opinions because the opinions "evidence historical facts." Most expert opinion "evidences historical facts." An opinion that cigarettes caused a litigant's cancer, for example, is an opinion that the cigarettes' causal role is an "historical fact."

It is not the general rule, secondly, that only "opinion" testimony is subject to reliability scrutiny under Daubert. In the federal courts (to which Nebraska's courts look for guidance), the defining feature of expert testimony is rather that it places reliance on specialized knowledge beyond the ken of the normal layperson. Does cell phone location data meet that description? The Robinson opinion summarizes some of the foundation testimony on this point as follows:

Each sector puts out a constantly generated pilot signal. When a call is generated, the cellular telephone finds the strongest pilot signal and sets up the call on the corresponding sector. The sector serving the geographic area where the telephone is located is most likely the one that will be utilized to set up the call. After the call is established, the telephone can utilize several towers at the same time, but during the call setup phase, it uses only the sector with the strongest signal. Once a traffic channel has been established, the signals go from the cellular site to the switch and are then routed back out either to another telephone, if the call is to another Cricket customer, or to another telephone company’s switch, if the call is to a customer of another service provider.

We're not technophiles. But that sounds like specialized knowledge to us.

There is room to argue, we'll agree, that in the case of business records, Daubert's reliability inquiry can or should be absorbed into the traditional "trustworthiness" analysis associated with the hearsay rule. There is even room to argue that for some categories of business record, or perhaps even for all, the traditional "trustworthiness" analysis should displace the reliability calculus that Daubert would otherwise prescribe.

But such results, if reached at all, should be reached explicitly and transparently, after due consideration of the policy implications. Decisions should not instead be predicated on the spurious premise that Daubert applies only to "opinion" testimony, or the fallacious theory that an opinion becomes a non-opinion because it states a conclusion about a "fact," or because a business record of the opinion is maintained.